Phillips v. Med Device Bus Svc ( 2022 )

Case: 21-30296 Document: 00516281483 Page: 1 Date Filed: 04/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 14, 2022
No. 21-30296 Lyle W. Cayce
Clerk
Clifford Phillips; Linda Bailey Phillips,
Plaintiffs—Appellants,
versus
Medical Device Business Services, Incorporated; DePuy
Synthes Sales, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CV-1447
Before Jolly, Smith, and Engelhardt, Circuit Judges.
Per Curiam:*
Relying solely on Louisiana redhibition law, Linda Phillips and her
husband sued the companies that produced the knee implant and bone
cement used in her first surgery. After her revision surgery two years later,
they assert that the bone cement used in the first surgery failed. The district
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-30296 Document: 00516281483 Page: 2 Date Filed: 04/14/2022
No. 21-30296
court granted summary judgment for Defendants, in part because it found
that the Phillipses failed to identify a defect in the bone cement. We affirm.
I.
On March 15, 2016, seventy-year-old Linda Phillips had a knee
replacement surgery performed by Dr. David Trettin. The surgery involved
Dr. Trettin implanting a DePuy P.F.C. Sigma Rotating Platform Knee. In
doing so, Dr. Trettin applied DePuy’s SmartSet bone cement to the tibial
side of the leg (i.e., the portion of the knee attached to the calf). Dr. Trettin
testified that the surgery went according to plan.
Months after her surgery, Phillips continued to have problems with
her knee. Phillips eventually sought out a new doctor, Timothy Randell, to
address her continued pain. Dr. Randell identified a mechanical loosening in
the knee and performed a revision surgery on February 12, 2019. During the
revision surgery, Dr. Randell found that “[t]he tibial component was loose.
The cement mantle was noted to be well fixed to the bone, but the implant
was not well fixed to the cement mantle.” Dr. Randell further found that
“[t]he tibial component was removed with significant ease.” Presumably
based on these findings, Dr. Randell testified that “the glue worked on the
bone, but the glue didn’t work on the implant,” and that “you just don’t
know if that glue never stuck to the implant to start with, or at any point along
the process, that glue came off.”
Dr. Randell also testified unequivocally that there was no evidence
from his surgery that that there was any defect in the DePuy prosthesis or
bone cement, and that there was a risk of loosening even if the implant is well
designed, the patient is compliant, and the doctor performs the surgery
appropriately. He did not know what caused the implant not to be well fixed
and stated that he “wouldn’t want to speculate at all about what would cause
it not to be well fixed.” Dr. Trettin also agreed that knee revision surgery
2
Case: 21-30296 Document: 00516281483 Page: 3 Date Filed: 04/14/2022
No. 21-30296
“doesn’t mean there’s a defect in the product,” and agreed that failure can
happen “for a variety of reasons, [at] no fault of the patient, the surgery, or
the device.”
In September 2019, Linda Phillips and her husband, Clifford Phillips,
filed a state-court suit against Medical Device Business Services, Inc., and
DePuy Synthes Sales, Inc., which designed and sold the artificial knee, the
cement, and the tools used during Ms. Phillips’s knee replacement. The
Phillipses alleged that the “DePuy Sigma knee assembly” was defective and
caused Linda Phillips pain and suffering. Defendants removed the matter to
federal court. Defendants later moved for summary judgment, arguing that
the Phillipses failed to produce any evidence of a defect (with the cement or
otherwise), and that the Phillipses had failed to prove causation. The district
court granted Defendants’ motion. The Phillipses timely appealed.
II.
This court reviews a grant of a motion for summary judgment de novo,
and applies the same standard as the district court, viewing the evidence in
the light most favorable to the nonmovant. First Am. Title Ins. Co. v. Cont’l
Cas. Co., 709 F.3d 1170, 1173 (5th Cir. 2013). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “Courts do not disfavor summary judgment, but, rather, look upon
it as an important process through which parties can obtain a ‘just, speedy
and inexpensive determination of every action.’” Goldring v. United States,
15 F.4th 639, 644 (5th Cir. 2021) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986)). A party that asserts that there is a genuine dispute as to any
material fact must support its assertion by citing to “particular parts of
materials in the record.” Fed. R. Civ. P. 56(c)(1)(A).
3
Case: 21-30296 Document: 00516281483 Page: 4 Date Filed: 04/14/2022
No. 21-30296
III.
The parties primarily dispute whether Appellants are required to
identify a defect to succeed on their redhibition claim.1 It is undisputed that
Appellants’ only asserted claim is one for redhibition under Louisiana law.
In Louisiana, “[t]he seller warrants the buyer against redhibitory defects, or
vices, in the thing sold.” LA. CIV. CODE art. 2520. To prevail on their
redhibition claim, plaintiffs must prove that “(1) the thing sold is absolutely
useless for its intended purposes or that its use is so inconvenient that it must
be supposed that [a plaintiff] would not have bought it had he known of the
defect; (2) that the defect existed at the time he purchased the thing, but was
neither known [n]or apparent to him; [and] (3) that the seller was given the
opportunity to repair the defect.” Alston v. Fleetwood Motor Homes of Ind.
Inc., 480 F.3d 695, 699 (5th Cir. 2007) (citation omitted). “Proof of the
defect may be made by direct or circumstantial evidence.” Atl. Specialty Ins.
Co. v. Porter, No. 15-570, 2016 WL 6833082, at *6 (E.D. La. Nov. 21, 2016).
“[T]o make out a prima facie case of redhibition the buyer need not prove
1
We note that the district court found that “[i]n addition to not identifying any
specific evidence of a defect in the SmartSet cement, Plaintiffs have failed to identify
specific evidence in the record on the other elements of a redhibition claim.” Specifically,
the district court pointed out that “Plaintiffs have not identified specific evidence in the
record that any alleged defect was hidden, as required under La. Civ. Code article 2520.”
This is a finding that Appellants completely fail to address in their opening brief. That
failure is an independent ground on which to affirm the district court. See United
Paperworkers Intern. Union AFL-CIO, CLC v. Champion Intern. Corp., 908 F.2d 1252, 1255
(5th Cir. 1990) (“[A]n appellant abandons all issues not raised in its initial brief.”). At oral
argument, Appellants argued that they had addressed this in their opening brief by generally
arguing that the district court and Appellees focus on the elements of a Louisiana Products
Liability Act claim rather than a redhibition claim. Such opaque briefing is inadequate to
properly challenge the district court’s finding. See United States v. Scroggins, 599 F.3d 433,
446–47 (5th Cir. 2010).
4
Case: 21-30296 Document: 00516281483 Page: 5 Date Filed: 04/14/2022
No. 21-30296
the underlying cause of the redhibitory defect involved, but only that the
defect existed.” LA. CIV. CODE art. 2530 Revision cmt. (b).
Appellants have made clear that they cannot identify a specific defect
in the bone cement. In their responses to Defendants’ interrogatories, they
stated that they were “not sure why the product failed, but the failure
occurred at a time and in a fashion that would permit [Phillips] to presume
the failure was due to manufacturer’s defects in the product.” In their
briefing before the district court, Appellants stated only that the bone cement
was “defective in some fashion.” But this approach runs afoul of Louisiana
redhibition law, as Louisiana courts have explained that a buyer must show
evidence of a specific defect that is “a characteristic or component of the
thing sold, rather than the entire thing itself.” Mire v. Eatelcorp., Inc., 927 So.
2d 1113, 1118 (La. App. 1 Cir. 2005); see also Jordan v. Sec. Co., 425 So. 2d
333, 335 (La. App. 3 Cir. 1982). This makes sense, as the Louisiana Civil
Code provides only that a “seller warrants the buyer against redhibitory
defects, or vices, in the thing sold.” LA. CIV. CODE art. 2520 (emphasis
added).
Appellants contend that they need not identify a defect because they
are entitled to an inference that the cement was defective if it failed in normal
use. Such an argument may make more sense in a case where a product fails
in normal use only when it is defective. But the evidence makes clear that is
not the case here. It’s true that Dr. Randell testified that the “tibial
component was loose,” that it was “removed with ease,” and that “the glue
worked on the bone, but the glue didn’t work on the implant.” But both
doctors were unequivocal: in this context, the failure of the cement to adhere
does not mean that the cement was defective. Dr. Trettin agreed that failure
can happen “for a variety of reasons, [at] no fault of the patient, the surgery,
or the device.” He further confirmed that knee revision surgery “doesn’t
mean there’s a defect in the product.” Likewise, Dr. Randell stated that he
5
Case: 21-30296 Document: 00516281483 Page: 6 Date Filed: 04/14/2022
No. 21-30296
did not know what caused the implant not to be well fixed, and that he
“wouldn’t want to speculate at all about what would cause it not to be well
fixed.” He agreed there was “no evidence” of “any defect in the Depuy
prosthesis or bone cement,” and that there was a risk of loosening even
without a defect. Accordingly, although there is some evidence that the
cement “didn’t work on the implant,” there is no evidence that this
happened because of a defect. Appellants have therefore failed to present
evidence by which a jury could find that a defect existed. See Ezell v. Gen.
Motors Corp., 446 So. 2d 954, 956 (La. App. 3 Cir. 1984) (“He need not prove
the underlying cause of the defect, but only that it existed.”).
The cases Appellants point to do not stand for the proposition for
which Appellants cite them. Perhaps the strongest case for Appellants is
Moreno’s, Inc. v. Lake Charles Catholic High Schools, Inc., 315 So. 2d 660 (La.
1975). In that case, a school’s air conditioning unit broke down because the
compressor failed as a result of a malfunctioning internal mechanical part. Id.
at 661. “Breakdown inspection revealed that at least four of the six pistons
and connecting parts and at least six suction valves of the compressor were
broken.” Id. The school sued, the district court entered judgment in favor
of the manufacturer, and the Louisiana Third Circuit affirmed. The
Louisiana Supreme Court reversed. It held, as discussed above, that the
school needed only to demonstrate that there was a defect in the
manufacture, not the cause of the defect. Id. at 662. It further held that
“under these circumstances” an inference could be drawn that a fault existed
in the manufacture of the compressor at the time of the installation, in part
because the compressor worked for only twenty-five percent of the time it
was designed to last. Id. at 663. This holding is not surprising, though, as
the school had identified a defect—the malfunctioning of the internal
mechanical part. Indeed, the best reading of Moreno’s is that the court held
that evidence supported a finding that the defect the school identified existed
6
Case: 21-30296 Document: 00516281483 Page: 7 Date Filed: 04/14/2022
No. 21-30296
“in the manufacture”—a requirement of today’s Louisiana Civil Code
article 2530—given that the court emphasized that “[e]vidence in the record
established that there was no fault in the installation or maintenance of the
compressor or its components.” Id. at 662. Accordingly, Moreno’s does not
support Appellants’ proposition that simply because a device fails, the buyer
is necessarily entitled to an inference that it was defective.
At oral argument, the sole Louisiana Supreme Court case Appellants
cited to support their position was Young v. Ford Motor Co., 595 So. 2d 1123(La. 1992). In that case, the plaintiff purchased a truck from defendant Ford
Motor Co. “Within three days of the purchase, Young had returned to the
dealer complaining about one of a number of major problems that had
surfaced with the truck.” Id. at 1125. The problems included an engine
knock which required the replacement of an ignition switch and two air
pollution pumps, peeling hood paint, defective breaks, issues with the short
block assembly, and a missing spring in the shift/steering column. Id. at 1125
n.1. Given the number of defects that the plaintiff cataloged with the truck,
it is unsurprising that the issue in Young was not whether a defect existed, but
rather what damages a plaintiff can recover in redhibition. The court stated
in passing that “[a] buyer of an automobile who asserts a redhibition claim
need not show the particular cause of the defects making the vehicle unfit for
the intended purposes, but rather must simply prove the actual existence of
such defects.” Id. at 1126. This is simply a restatement of the law discussed
above as it applies to vehicles and does not support Appellants’ argument
that they are entitled to an inference in this case.
A binding case from this circuit is directly on point and illustrates that
Appellants’ argument is meritless. In Grenier v. Medical Engineering Corp.,
the plaintiff had breast augmentation surgery, in which a surgeon inserted
silicone breast implants. 243 F.3d 200, 203 (5th Cir. 2001). A decade later,
the plaintiff began having health problems. Id. Her surgeon determined that
7
Case: 21-30296 Document: 00516281483 Page: 8 Date Filed: 04/14/2022
No. 21-30296
while the left implant had not ruptured, a certain amount of silicone gel was
outside the implant shell but within the breast tissue, a phenomenon known
as “gel bleed.” Id. The plaintiff sued the implant manufacturer, asserting a
redhibition claim. Id. Although the Fifth Circuit disagreed with the district
court’s determination that the plaintiff’s claim was time-barred, it held that
her redhibition claim failed because she failed to provide evidence of a defect.
It held that “a redhibition claim requires a showing of some vice or defect in
the thing sold and [the plaintiff] failed to submit evidence of the alleged
defects in [defendant’s] breast implants. Because she presented no
competent evidence of defect, [plaintiff’s] redhibition claim is without
merit.” Id. at 207. Appellants attempt to distinguish Grenier by pointing out
that the case also dealt with a products liability claim and that the plaintiff’s
redhibition claim had been dismissed as time-barred at the district court. But
those differences are irrelevant, and Appellants entirely ignore the Grenier
court’s holding that is exactly on-point here.
In short, Appellants have failed to provide competent evidence of a
defect, and they are not entitled to an inference that a defect existed on these
facts. Because we hold that the district court properly granted summary
judgment because Appellants failed to identify a defect, we do not reach the
parties’ arguments regarding causation.
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
8